NEW DELHI: Making its strongest pitch against triple talaq in the Supreme Court, the Centre on Wednesday brushed aside the argument that triple talaq should be allowed because it had been in practice for centuries. The Centre's top law officer Mukul Rohatgi said instant divorce was certainly not an essential part of Islam and it could not be allowed to continue by the court, just because it had been in practice for 1,400 years.
"Can anyone say that we allow human sacrifice just because it was practised earlier," Mr Rohatgi argued before the country's five top judges hearing the triple talaq case.
Attorney General Rohatgi rejected suggestions, also from Mr Kapil Sibal, that the court should adopt a hands-off approach because enacting a law would amount to the majority community forcing its views on the minority community.
"It is not a majority versus minority issue.... It is a tussle between haves and have-nots within the system. It is intra-community struggle between men and women because men are more resourceful, earner and educated," he said, pleading with the top court to put a final end to the practice that the court too had called the "worst form" of dissolution of marriage.
The Supreme Court must step in and remove triple talaq," Mr Rohatgi said, going on to elaborate that old practices among Hindus such as Sati and untouchability had also been outlawed. But the court promptly shot back: "All these issues were addressed by the legislature which removed it. If we (court) enter, you will say the judiciary usurped powers of the legislature."
The constitution bench comprising five judges, all of different faiths, started daily hearings of the triple talaq case last week after the courts closed for summer vacations. The judges said they would determine if triple talaq, the practice of Muslim men getting instant divorce by saying "talaq" three times, was fundamental to religion. They had, however, indicated that they would not rule on polygamy among Muslims.
One of the strongest votary of continuing with the practice has been the All India Muslim Personal Law Board (AIMPLB) represented by Congress leader Kapil Sibal, who had called triple talaq a matter of faith that had been practised for 1,400 years. "Who are we to say that this is un-Islamic," he had asked. In an attempt to link the practice to religion, he added that the source of triple talaq can be found in Hadith and it came into being after the time of Prophet Muhammad.
Much of Mr Rohatgi's focus today was to rebut such arguments, trying to delink the practice from Islam and insisting that it had to pass the constitutional test of right to equality for women. The top law officer said religion was protected under the right to religion, not religious practices. In any case, he said, the right to religion was not absolute.