New law if triple talaq made illegal, Centre tells SC

All forms of divorce bad in law: Rohatgi

The Centre on Monday told the Supreme Court that it would bring in a law on divorce for Muslims if the practice of ‘triple talaq’ is declared illegal. “We would not leave people high and dry if all forms of talaq are struck down. We will bring in a law. The state will step in,” Attorney General Mukul Rohatgi submitted before a five-judge bench presided over by Chief Justice of India J S Khehar.

Rohatgi contended that all forms of divorce were bad in law and violated the fundamental rights of women.
The different forms of talaq denied Muslim women equality and violated their dignity, he said. The three forms of talaq under Muslim law are, talaq ul Biddat (triple talaq), talaq ahsan and talaq hasan. However, the bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer, asked Rohatgi if all forms of divorce were declared unconstitutional, how would a man come out of marriage. “If this court strikes it down, we will bring a law. Government will have a law. You (the SC) are the guardian of the fundamental rights,” he said. 

The bench then asked, “Can we intervene when it is about personal rights? Rohatgi then said, “It is the question of minority (women) within minority. Can one half of the woman population in a community be denied their fundamental rights on the basis of a legal argument? Is it not the duty of the state to intervene on their behalf and fight for their rights?” All personal laws are also laws within the meaning of Article 13 of the Constitution that makes it clear that no law could be valid if it violates the fundamental rights.

“Therefore, even the Shariat Act, 1937, comes within the ambit of the constitutional principles. All such provisions that are in breach of fundamental rights must give way,” he said. Rohatgi further contended that triple talaq must have to go even if the court were to hold that it was an integral part of the religion and hence protected under Article 25 of the Constitution.

“Religious practices are protected under Article 25 subject to morality, public order, health and various other provisions of the Constitution. What we are talking about here is the constitutional morality, which is completely incongruous if we look at triple talaq. So you can look at this practice from any prism but will reach the same conclusion,” Rohatgi said. In his opening arguments, Rohatgi said radical theocratic countries have brought reforms but a secular country was still debating the issue.