NEW DELHI: The Centre's forceful arguments for a ban on triple talaq amounted to religious discrimination as the government had kept silent on Hindu practices and beliefs, the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court on Tuesday, reported TOI.

Arguing in defence of triple talaq or instant divorce, the board said that the practice could not be put to constitutional test as beliefs of a community were protected by the Constitution.

Appearing before a five-judge bench of CJI J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, board counsel Kapil Sibal virtually silenced an inquisitive bench by saying triple talaq had been in practice for 1,400 years and, according to 160 million Indian Muslims, remained valid.

Sibal sought to coat triple talaq with the mandate of Islam as he asked, "Can anyone question the belief and faith of Hindus that Ayodhya is the birthplace of Lord Ram? Who are we to question the validity of triple talaq which has been validated by Hadith and held to be valid by a majority of companions of the Prophet? Matters of faith and belief of a community are always protected by the Constitution and not questioned on the ground of constitutional morality."

But the board was evasive on why other Islamic countries had repealed triple talaq if it was indeed valid under Hadith. It said India's 160 million Muslims followed the Hanafi school of Islam which validated triple talaq.

However, in its lengthy written submissions, there was just one paragraph on this, "In other jurisdictions too, prior to codification, including countries like Pakistan, Egypt, Tunisia etc, triple talaq was considered part of Islamic faith."

Referring to the attorney general's argument that triple talaq failed to meet constitutional requirements on the grounds of equity and equality, Sibal said matters of faith and belief emerged from mandates of a religion which had been practised for centuries by a community expressing allegiance to that religion.

"If Hindus believe that Ram was born in Ayodhya, it is not a question of constitutional morality. But when it is triple talaq, the government raises the question of constitutional morality.

In matters of faith, belief, practices and customs, constitutional morality is a non-issue," he said.
Sibal said the minority Muslims needed protection of their customs and practices in a Hindu majority democratic country. "Despite the codification of personal laws of Hindus 60 years ago, all its old practices and customs have been protected.

Take for example the Dowry Prevention Act, despite its enactment, the practice continues as the law permits exchange of presents," he said.
"When it comes to Hindu practices and customs, the laws protect them. But when it comes to Muslim personal law, the government says nothing should be permitted.

This is not the way to deal with it. Customs and practices cannot be tested on the constitutional touchstone by courts. If at all anyone can change it, it will be the community practising it.

It cannot be done overnight. So, educate them if there is anything wrong in their customs, practices and usages. But do not attempt to effect changes forcibly through the guile of Constitution," Sibal said.

Questioning the competence of the SC to go deep into religious practices in which the community had shown faith for centuries, Sibal said, "A billion words have been written on triple talaq and yet the debate continues.

Can the SC digest all of it within six days and arrive at a conclusion? It would be wrong for the court to force its view on the community.

Let the community decide and if they are ready, let Parliament enact a law to regulate divorce among Muslims."

Sibal cautioned the SC not to fall for attorney general Mukul Rohatgi's assertion that if the court quashed triple talaq, the Centre would enact a fresh law governing divorce among Muslims and said there could be a situation where Parliament failed to pass a legislation.