A new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce including triple talaq are struck down, the government on Monday told the Supreme Court.
The Centre, which also sought that the issues of polygamy and 'nikah halala' should not be excluded from the ongoing deliberations, got an assurance from the apex court that these aspects were open and would be dealt with later.
The government termed all the three forms of divorce among the Muslim community ?- talaq-e-biddat, talaq hasan and talaq ahsan, as "unilateral" and "extra-judicial".
The apex court bench said the government has to first pass the test of "essentiality" and prove that 'triple talaq' is not an essential part of Islam, as this will amount to "tinkering" with religion.
A five-judge constitution bench headed by Chief Justice J S Khehar said "we are not only the guardian of the Constitution but also the guardian of minority rights" and will have to see if triple talaq formed a fundamental part of religion and pass the test of "essentiality" under Article 25.
The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, asked if the court struck down all forms of talaq, then what options would a Muslim man be left with to come out of a marriage.
"The government will not leave the people high and dry once the instant form of divorce (triple talaq) or all forms of talaq are struck down. We will come out with a law to regulate the marriage and divorce among Muslim community," the Attorney General Mukul Rohatgi, appearing for Centre, said.
He said the issues of Muslim marriage and divorce were separated from religion in Shariat Act of 1937 itself and have been codified as personal law under Section 2 of the Act.
The apex court has to test them on the touch-stone of the fundamental rights of gender equality, justice, dignity, gender discrimination and human rights under constitutional provisions, including Articles 14, 15, 21 and 51A.
"All personal laws must be in confirmity with the Constitution. Rights of marriage, divorce, property and succession has to be treated in the same class and has to be in conformity with the Constitution," Rohatgi said.
The Attorney General also said what kind of religious practices are essential to a particular religion or faith was difficult to define for the court. But once such practices of marriage and divorce are separated from religion, there cannot be any immunity under Article 25 (freedom to practice any religion).
He said if the practice of talaq was out of Article 25, then it has to be constitutionally moral, which means it has to be secular and non-discriminatory.
"One half of a community in the country has to suffer inequality from their male counterpart. What may be permissible for society may not be constitutionally moral," he said.
To this, the bench observed if the government wanted social welfare and reforms, why can't it bring laws to correct the wrong.
"Yes, we can bring law. There is no law for past 60 years. It has not been done. But the court should first strike down these practices which are not in confirmity with the Constitution," he said.
Rohatgi said when half the population of a particular community is not empowered, no equal opportunity is given, they are devoid of gender equality, then it does not pass the test of constitutional morality.
He said even if triple talaq is considered as an essential part of religion and falls under Article 25, the practice still has to be constitutionally moral.
"Even if talaq is considered under Article 25, it has to be related to the fundamental rights and should abide by the principles of gender equality, non-discrimination and justice," the AG said.