20 May, 2017
On the second day of the hearing last Friday, senior Congress pioneer Salman Khurshid, who is the amicus curiae in the matter, said under the watchful eye of the Supreme Court that the dubious Islamic separation framework can't be legitimised at all.
"It is the responsibility of the government and people of the country to give justice to Muslim women", Modi said at a rally in Mahoba previous year. It is a matter of faith.
On Monday, the Centre told the court that it would bring in new law to regulate marriage and divorce among the Muslim community if all forms of divorce, including triple talaq, are struck down.
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". "This is the question and this is the issue".
Rohatgi said that since the court is dealing with only one form of talaq, therefore he was restricting itself to one form only although he considered all forms as wrong and unconstitutional. But these customs are protected.
"The intention of the 1937 Shariat Application Act was not to codify Muslim Personal Law".
"Some part of Personal Law may be part of religion but some part may not be. We can not wipe out (the difference between) Shias or Shunnis".
The attorney general said all these high courts have said that the pronouncement of talaq thrice shall be considered as one, so that there is an opportunity for reconcillation.
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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.
The board has asserted that a practice which is being followed for 1,400 year cannot be termed as un-Islamic. "If both marriage and divorce are contracts, why should others have a problem?" If Nikahnama is the heart of it, why can't divorce be part of it.
The idea was to establish that the practice of instant divorce for Muslim men was intrinsic to the religion; the court had made it clear right at the beginning that if the court concluded that it was, then it would adopt a hands-off approach.
"Personal laws can not be tested on the ground of being discriminatory".
This is a change of stance as till now, the Centre had said it was only opposed to triple talaq where a husband instantly gets to divorce his wife by uttering "talaq, talaq, talaq".
On Tuesday, Justice Rohinton Fali Nariman also said that the court is not going to visit the Narasu Appa Mali judgement of 1951, Bombay High Court, which distinguished between personal laws and laws in force under Article 13 of the Constitution, thereby excluding the nebulous zone what constitutes Muslim personal laws from court interference. "Now you should go and tell him".
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.
Sibal said if Parliament wishes to bring a law it can enact with regard to an activity which is secular and reformatory.