Will bring law if triple talaq is struck down, Govt tells apex court

The AG’s comments came in response to a query from the bench headed by Chief Justice of India J S Khehar, which sought to know what was the recourse open to Muslim men to seek divorce.

Written by ANANTHAKRISHNAN G | New Delhi | Updated: May 16, 2017 3:23 am
Triple talaq, Supreme Court, SC triple talaq, supreme court triple talaq, muslims, muslim marriage, nikah halala, Sharia law, India news, indian express news The AG agreed that the court was not the proper forum to interpret religious laws, but pointed out that there was no need to do that in this case.

CRITICISING THE practice of triple talaq as “extra-judicious” and “discriminatory”, the Centre told the Supreme Court on Monday that it will come up with a law to deal with any situation that may arise if the court strikes down all forms of talaq as unconstitutional. “The Centre will step in,” Attorney General Mukul Rohatgi told a five-judge Constitution Bench of the Supreme Court which is hearing a batch of petitions challenging the validity of instant triple talaq, polygamy and nikah halala.

The AG’s comments came in response to a query from the bench headed by Chief Justice of India J S Khehar, which sought to know what was the recourse open to Muslim men to seek divorce if it holds all the three forms of talaq as unconstitutional.

“The practice of triple talaq is discriminatory in three ways. It puts Muslim women in a disadvantageous position within the community, vis-a-vis women of the other community and also at the international level… it puts the (Muslim) women in a subservient position when compared to women of other community,” Rohatgi told the apex court.

Stressing that “matters of personal law must conform to the Constitutional goals”, the AG said “as far as Hindus are concerned, various steps were taken to bring personal laws in conformity with Constitution. But for Muslims, there was only the 1937 (The Muslim Personal law (Application) Act, 1937) and 1939 (The Dissolution of Muslim Marriages Act, 1939)… and changes post the judgment in the Shah Bano case”.

While the Centre sought to stress the importance of the Constitution, saying “Constitution is supreme. Nothing else is supreme. Anything that is violative of the Constitution must go”, the court said it had limitations while going into personal laws and interpreting the tenets of any faith. “Tenets of a religion can never be tested in a court,” said CJI Khehar.

The AG agreed that the court was not the proper forum to interpret religious laws, but pointed out that there was no need to do that in this case. “Marriage, divorce and succession are no more personal law after the 1937 Act which made them statutory. The court only needed to see if under Article 13, the law was consistent with the Constitution,” Rohatgi contended.

Justice R F Nariman put this in context: “So you mean to say the question is if personal law is applied by the state by way of statute like the 1937 Act or otherwise, is it valid under Constitution.”

Answering in the affirmative, the AG went on to refer to the “discriminatory nature” of the talaq provisions.

“How do you suggest we remove this inequality,” queried Justice U U Lalit. In reply, the AG said “by exorcising the talaq provision” and added that “it must be struck down without getting into the question whether it is a part of religion.”

The AG pointed out that the “Constitution bench is to examine whether anything infringes the provisions of the Constitution,” but the CJI sought to disagree and added that “not only Constitutional issues, but every important issue that has a bearing on a large majority of the people is dealt with by a Constitution bench… that’s how this issue has come up before the bench.”

The CJI also added that marriage was an integral part of religion, conveying that there were limitations in going into the subject. “If that is so, no practice can be set aside,” said the AG.

Justice Nariman pointed out to the AG that this was the reason why there was the “essential test”. “That’s why the test of essential (whether the practice under challenge is essential to the practice of religion). All practices do not get protection,” he said.

The AG said “the court cannot shut its eyes to what is happening.” On why the Parliament had not made any law to deal with the subject till now, Rohatgi said: “I can’t speak of the past. But for 60 years, Parliament did not make a law because it is a sensitive subject.”

To this Justice Kurien Joseph said, “not because it is politically sensitive, but Constitutionally sensitive”.

Appearing for the All Indian Muslim Personal Law Board, senior counsel Kapil Sibal backed the provisions, saying it was not for the court to decide on the validity of personal laws. “It is highly complex… Parliament should have done something…There was argument after argument in the Constituent Assembly if personal laws should be made fundamental rights, but this was rejected… Constitutional scheme itself is of protection of personal laws,” said Sibal.

Interestingly, he agreed that the practice was discriminatory but added, “the problem lies with patriarchy…all patriarchal societies are discriminatory.”

“Can the court decide what is faith,” Sibal asked.

“The court is only called upon to decide the validity of a provision that is discriminatory to women,” responded Justice Kurien. Sibal added that such discriminatory provisions existed even in the Hindu law and wondered if the court would strike down Hindu law because of that.

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  1. S
    Sambit Mohanty
    May 16, 2017 at 8:57 am
    govt ko yeah pata chalta Hai ki 21 desh me triple talaq nehi Hai,magar yeah nehi pata chalta Hai ki kisi v desh me reservation nehi hai
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    1. R
      rajan
      May 16, 2017 at 8:49 am
      Rohtagi wants the court to intervene in this case. Why? Otherwise, BJP Government is always eager to clip the wings of judiciary. Clearly, all parties are g standing the issue for their respective vote bank. BJP in particular has no interest in welfare of Muslim women & is intent on keeping the debate alive to create fissures within the Muslims. If a practice is unjust, it has to be addressed irrespective of it's political ramifications.
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      1. D
        Dipak
        May 16, 2017 at 8:03 am
        Just wonder what Hema Malini thought when she converted to Islam.
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        1. B
          Biswanath Dutta
          May 16, 2017 at 7:57 am
          Why laws as per religion ? it should be one country one law.
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          1. I
            Indian
            May 16, 2017 at 7:32 am
            MU-SLIMS insisting on adhering to LAWS made in VIOLENT ARABIA more than 1380 years ago is plain stupidity. .......... Its written in QUR-AN that Mu-slims should come for HAJJ on "FOOT or Camel. ..................... QURAN 22;27 - And proclaim to [the] mankind [of] the Pilgrimage; they will come to you (on) foot and on every lean camel; they will come from every mountain highway distant. ............................. But now MUSLIM FLY in PLANE for HAJJ. Similar change should be accepted in all aspects of life as the 1380 year old LAWS have become OUTDATED and UNFIT for MODERN SOCIETY.
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            1. S
              Sohail Siddiqui
              May 16, 2017 at 7:05 am
              SC Should check wrongful use of correct Quranic provision [rarest of rare use] - Triple Talaaq is not sinful its misuse is.
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              1. S
                Sohail Siddiqui
                May 16, 2017 at 7:04 am
                SC Should check wrongful use of correct Quranic provision [rarest of rare use] - Triple Talaaq is not sinful its misuse.
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                  Abdul JAMAL
                  May 16, 2017 at 2:24 am
                  Time has come for Muslims to move forward and accept that the minority appea t policies by previous governments were nothing but keeping Muslims out of the main system and backwards. Even Islamic countries don't allow the practise of triple talaq and all those practices which were good during the time of Prophet MOHammed but not today. Will you be able to wipe out Khafirs or tax Jews and Christians just because it is written in Holy Koran? We have come a long way. Let's not go backwards. Do you know in Islamic countries If the husband chooses to get a divorce, he must comply with specific requirements. The husband has to provide a written notice to chairman of the court, and a copy must be provided to his wife. If he fails to comply with these requirements, he can be fined or imprisoned. Additionally, the divorce itself will not be recognized until he provides a written notice to the chairman for up to 90 days. The chairman will attempt to mediate a resolution.
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                  1. K
                    Kalabras
                    May 16, 2017 at 1:52 am
                    Brahmins are great is deriving tremendous pleasure in fidd the A S S O L E S OF HINDUS, MUSLIMS, CHRISTIANS, BUDDHISTS and all other religion that exists. IN SHORT, BRAHMIN ALIENS ARE AGAINST HUMANS. SUCH AN ALIEN SOECIES SHOULD NOT EXISIT. SO EXTINCT BRAHMINS.
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                      Michelle:Vedic:Human
                      May 16, 2017 at 1:36 am
                      Are Muslims asking for it? Aren't there any other reforms that is not RIOT IGNITING THAT THE BJP SCOUNDRELS TOOK UP THIS TO DELIBERATELY PROVOKE THE MUSLIMS INTO RIOTS. PIG MODI DIDNT LEARN AND PRACTICE ANYTHING ELSE OTHER THAN PROVOKING THE MUSLIMS? THESE PROVOCATIONS CLEARLY PRIVES THAT THE GODRA MA SS ACRE WAS DINE BY MODI AND HIS RSS DOGS! RSS SHOULD BE BANNED WORLD OVER.
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                        Abdul JAMAL
                        May 16, 2017 at 2:07 am
                        Michelle, Christian brown slave of he white supremacists church are you also scared because the Christian Padres molested you and filled you up with hatred ?
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                        Prof. P.J.Paul
                        May 15, 2017 at 11:35 pm
                        There is dowry system, widows are discriminated ,child marriage, honor kil in Hindu religion. Hindu sastras have all these . Why BJP government is not taking interest in this as it pokes nose unnecessarily in other regions. As you cannot paint the all the houses in India withe same colour, why cannot the government leave religion to its own faiths. It wants to bring a common civil law. As you require a temple in the US let any Indian follow any religion or faith in India. ;BJPGOVERNMENT must respect multi cultural multi religious multi ual fabric of India. There many urgent things needs to be addressed but The apex court unnecessarily wastes resources and time on flimsy things brought by BJP GOVERNMENT. There is no written statute in Muslim religion. If it comes to court say talaqis invalid. More worry on mote than on beam!
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                        1. S
                          Satish Madhekar
                          May 15, 2017 at 11:46 pm
                          , there are laws against diwry, chilf marriages, honor kil s etc. But there is no law against triple talak, polygamy in muslims, veil etc. which are discriminatory against women. Hence, a strict law is required against these inhuman practices.
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                          1. K
                            Kalabras
                            May 16, 2017 at 1:55 am
                            @Satish MADhekar: when onwards did you become so concerned about Muslim women? Since your mother refused to lie down with you? A bunch of dog s h I t called brahmins that have been practicing untouchability for 3000 years are so concerned about Muslim practice. FK OF YOU BRAHMIN SCOUNDREL!
                            1. A
                              Abdul JAMAL
                              May 16, 2017 at 2:15 am
                              Kalabras, the language you used clearly shows you are a brown slave converted Christian who will molest and rape kids in white supremacist churches and need to be banned. May be Mary raped and Jesus is illegetimate from unknown father?
                            2. A
                              Abdul JAMAL
                              May 16, 2017 at 2:11 am
                              So called professor Paul, are you professor at the Christian church university for rape and child molestation? Unless you are a professor who indulges in ic natures and need help and be out in jail for your crime you will continue to spread your criminal activities under the illegal protection of the white supremacist you will always be brown slave church. Amen
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                              1. A
                                Abdul JAMAL
                                May 16, 2017 at 2:30 am
                                So called professor Paul let me know if you are a professor of stupidity and backward step studies? Do you want me to quote bible here which allowed poor blacks to be converted into Christianity first and then slaved in the name of Jesus? This is exactly what the white supremacist church is doing today by converting people like you who are brown and then slaving you to spread hatred and rumors with nonfacts. ELSE let's talk about facts. Do you know most Islamic countries have banned triple Talaq. There is no triple talaq in non muslim countries except India. Did you ever wonder why? Because it is inhumane to women even though as a man we have the luxury. You are racist and bigot just like your KKk friends who justified slavery or your Adolf Hitler and Mussolini who justified kiIiings in the name of bible. Shame on you.
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                              2. I
                                Iqbal
                                May 15, 2017 at 11:00 pm
                                SC instead of wasting time if looks into rapist law strictly that may reduce the rape case. By only hearing leading lawyers accused get acquittal in such heinous crime so SC should how law implies. New case of Kolkata high court judge was pronounced six months imprisonment level of dignity. It would better if Muslim personal intervene and only instant triple talaq is cancelled. That three consecutive month meeting should held for reconciliation and each month one talaq at end of third month complete the talaq producer. Personal law of each religious is protected and Guarded by cons ution than how and why Muslim are targeted. All other religions women are not face problem. This is known as sycophant.
                                Reply
                                1. A
                                  Abdul JAMAL
                                  May 16, 2017 at 2:19 am
                                  DEar Iqbal Bhai, let's not make India a sharia country. The role of holy Koran is in our houses and not outside our houses. We cannot be implementing partial laws for only Muslim men and then all others get to follow the same law irrespective if they are Hindu men or Hindu women, Christian men or Christian women, Sikh men or Sikh women, Buddhist men or Buddhist women, and MUSLIM WOMEN everyone follows one law except MUSLIM MEN who are allowed triple talaq today. Is that fair in a secular country? Even Muslim countries have banned triple talaq. Let's not take Islam backwards. Let's follow the process and become truly secular. Jai Hind.
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                                  1. D
                                    Danish
                                    May 16, 2017 at 2:18 pm
                                    Dear Abdul if you are a Muslim you should know that Muslim women can also take talaaq. You go and first understand what is talaaq.. It is a long and very complicated process not just to say talaaq and the divorce process been completed
                                2. M
                                  manohar joshi
                                  May 15, 2017 at 10:23 pm
                                  decryption - govt tells SC we dont have guts to bring law as people dont believe even 1 percent and even people dont believe u ( SC ) one percent but some are afraid of your contempt or punishment power to some extent so first you use your power to subjugate and injure people remaining it is easy for us to kill - but nothing will succeed it is mere time pass
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                                    Ratan
                                    May 15, 2017 at 10:07 pm
                                    Bagawat's hope is that if the Muslim divorce can be prevented, many Muslims would not Ben available to marry brahmin women and that way he can increase the brahmin population. What do you think RSS CHADDIS are doing. THEY ARE FOLLOWING EXACTLY WHAT N A Z I'S WERE FOLLOWING. Including the salute! AND STUPIDLY THE VICTIMS-ISRAELITES-ARE THIS TIME ALIGNED WITH NEO-N A Z I RSS AND TURNED PERPETRATORS. DUMB I D I O T S!
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                                      Abdul JAMAL
                                      May 16, 2017 at 2:32 am
                                      s were Christians. You are the dumbest paid IT media cell person from the white dominated supremacist male Christian church who pays brown people like you to divide India and spread hatred.
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                                    2. M
                                      Murthy
                                      May 15, 2017 at 10:06 pm
                                      RSS is going to file a case in SC directly TO ONLY RECOGNIZE AS THOSE CITIZENS WHO HAVE ARYAN FEATURES AND 0.0000001 millimeter P E N I S SO THAT ONLY BRAHMINS WILL BE LEFT TO SKREW BRAHMIN WOMEN. Dogs like Dipak Mishra will rule is favor as long as they sing Bharat Mara's first night with Manu song!
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                                        Abdul JAMAL
                                        May 16, 2017 at 2:34 am
                                        Really RSS is going to do that? Then are Christians going to file a pe ion thay they systematically rape brown children and nuns so they should be allowed as per the laws of bible where Virgin Mary was raped and Jesus was born out of wedlock? Amen.
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                                      2. O
                                        Oh....
                                        May 15, 2017 at 10:04 pm
                                        If India is a democracy and believed in majority, where are the stastics to show that the will of majority in the various communities are taken into account for making a decision or law. What the BRAHMIN RSS SCOUNDRELS COULD NOT ACHIEVE THROUGH LAW, They achieve through so called liuigation. SC, like many other offices, is nothing but a lap dog of AGENCIES. People, if you want peace in India, and i the future the world, annihilate brahmins!
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                                          Abdul JAMAL
                                          May 16, 2017 at 2:36 am
                                          I love it when you say BRahmins scoundrels. Let's generalize and blame them. In return then let's see fin the world blames the Muslims to Ben terrorists? Let's spread hatred. You are doing a good job. Keep it up. Off course I am being sarcastic you moron.
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                                        2. T
                                          Truth
                                          May 15, 2017 at 9:21 pm
                                          When will the Govt. bring law for transparency in political funding 😐 ?
                                          Reply
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