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.Citing examples, Khurshid told the court that the Triple Talaq practice can not be validated constitutionally.
"So what? Nothing. The point is you have to go a step further and strike down triple talaq, declare it illegal, You have to first decide whether this practice is against constitutional morality or not", he submitted.
The full on debates and discussions came to light when a petitioner, Shayara Banu, challenged the Muslim personal law over instantaneous application of triple talaq (talaq-e-bidat), polygamy and nikah-halala.
A five-judge seat of the summit court additionally watched that it would not hear polygamy issue alongside the triple talaq case. The Supreme Court clarified on Monday, the day three of the hearing, May 15, 2017, that it had not closed the window to scrutiny of the two contentious issues, though it said that a decision on triple talaq wouldn't have any bearing on those two issues.
To this, Justice Rohinton Fali Nariman, one of the five judges constituting the SC vacation bench, asked if they should not hear the matter at all.
This prompted Justice Kurian Joseph to say that the practice of triple talaq will be un-Quranic as it does not have any basis in the Quran.
In December previous year, the Allahabad High Court termed the Islamic practice of divorcing a woman by uttering the word "talaq" thrice "unconstitutional". Who are we to say that this is un-Islamic.
It further stated that it will also be open to the woman to state in the certificate that she will not accept divorce given by way of triple talaq.
"The Central Government makes runs however as I would like to think, the pinnacle court ought not to meddle with it", Sibal said.
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The court has said that it would only look into the triple talaq issue for now. The national Law Commission a year ago sought public views on whether to abolish the practice, triggering a debate between politicians and religious leaders.
The AIMPLB counsel said the age-old practice was "part of my faith and you can not determine what should be my faith". He said the term "constitutional morality" includes secularism, dignity and non-discrimination.
He asked: "If there is a conflict between constitutional morality and personal law, which shall prevail?"
Additional Solicitor General Tushar Mehta said that AIMPLB should apologise for justifying triple talaq by saying that men have greater strength to control their emotions.
"Triple talaq is unlawful".
However, the All India Muslim Personal Law Board has opposed any judicial interference in what it calls a religious matter, protected under Article 25, which grants freedom of religion.
The bench had asked Khurshid if triple talaq was India- specific and what had led to its repeal in other countries.
According to the Muslim law board talaq thrice is 1,400-year-old practice.