Targeting personal laws would have horrendous consequences, says the senior counsel

The counsel for the All India Muslim Personal Law Board (AIMPLB) Kapil Sibal stuck to its stand in the apex court that personal law could not be challenged. Justice F Nariman had earlier commented that there was no need for the Bench to do anything as 32 privy councils and the Shariat Act already existed and a law was in force.

The Court had resumed the hearing of Triple Talaq after lunch to hear arguments on the validity of triple talaq. A five-judge constitution bench is dealing with the issue during vacation of the Supreme Court.

Sibal insisted that personal laws enjoy immunity under Articles 25 and 26. He persisted with his argument that the Shariat Act was enacted as a reaction to the Hindu law, where women were denied property rights, and couldn’t be enforced.

The senior counsel submitted that in case laws were enforced, there would be no personal law for Muslims left. On the contrary, there will be a personal law for other communities. It will have strong ramifications. The consequences would be horrendous, he pleaded.

When Justice Nariman observed that no other personal law would be affected except the one related to biddat, Sibbal disagreed, saying that everything from marriage, divorce, etc, would bear the brunt.

Sibal apprised the court that a document that would transform the life of a community of 165 million people was being interpreted. After all, India had the second largest population of Muslims in the world, he contended.

He further argued that the 1937 Act did not codify rules and it was all personal law. He said that as in a majority Muslim state, minority Hindus should be protected, similarly in a majority Hindu state, minority Muslims should be protected. There was a need to accept each other’s culture and laws must be made to make people aware of it, he reiterated. He said it was wrong to come and complain in court that such practice violated Article 14 (equality before law). Before doing so, one must prove that it is “law” under Article 13.

Referring to the Hindu laws, Sibal contended that though dowry is prohibited by law yet concessions are allowed. The same happens in the Guardianship Act, he said. He lamented that all customs of the Hindus are protected but when it comes to Islam, issues are raised that certain practices were discriminatory of Articles 14, 19 and 21.

Arguing on the concept of faith, Sibal submitted that though the Quran doesn’t talk of Triple Talaq, it was sanctioned by the Prophet’s companion immediately after his death. He said that the practice was going on for 1,400 years based on belief and now it was being told that the practice was wrong as it clashes with the Constitution. Faith can’t be questioned, he said.

However, the court tried to find out from Sibal if the Quran mentioned about Triple Talaq. Justice Joseph maintained that if there was already a provision, the court need not go for anything else. He said that the court’s job was not to interpret faith but to find out whether it was part of the faith.

Sibal argued that examining faith was beyond the court’s jurisdiction. He contended that the scholars on whom the petitioners had relied were not even Sunnis.

Accepting that dissent was good as it initiates reform, Sibal argued that it was bad to single out a religion. He blamed patriarchy as the root cause of all problems.

Supporting Talaq e biddat as an effective tool, he said that many women belonging to the Hanafi rule accepted Triple Talaq.

Justice Kurien Joseph wanted to know the safety measures included in Triple Talaq. Sibal brought up the example of a drunk husband coming home every day. In this case the wife could ask him to give Triple Talaq. He gives it and it is over. Otherwise, he will torture her for a lifetime. Then the community will come up and ask him to give Triple Talaq.

He compared it to the Hindu law wherein if a wife asks for divorce, she will not get alimony and maintenance. “Your lordship will then direct her to go for mediation.”

Justice Kurien Joseph said that the issues involved could not be decided even in sixty days

Arguments to continue on Wednesday (May 17)

—India Legal Bureau