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Why not do away with validity of marriages under Hindu Marriage Act: Supreme Court

Tuesday May 16, 2017 1:05 AM, & Agencies

Mukul Rohatgi

New Delhi:
Stating that if the government's intention is to bring issues relating to marriage and divorce among Muslims on par with women in other religions, the Supreme Court of India on Monday asked Attorney General Mukul Rohatgi why not do away with validity of marriages under all laws such as Hindu Marriage Act and (Christian) Divorce Act.

"Let us give sanction only to the marriages under the Special Marriage Act, which is religion-neutral," Justice Khehar, Chief Justice of India, said hearing a bunch of petitions filed to challenge validity of triple talaq.

The remarks came when AG Mukul Rohatgi appearing for the centre said a new law to regulate marriage and divorce among the Muslim community would be brought in, if all forms of divorce including triple talaq are struck down.

In response to Justice Khehar's poser Rohatgi replied that the answer to all this issue perhaps lay with the Uniform Civil Code.

"That will take us to the Uniform Civil Code but are we discussing that in these proceedings?" he questioned, according to News18.

To this, Justice Rohinton F Nariman said that marriages are inexplicably a part of the religion and that is why we had separate enactments for different religions to deal with such issues.

"Besides, religious practices are what people of that religion think are the essential practices. It cannot be what you and I think are the religious practices," he added.

The five-judge bench hearing the case also said the centre has to prove triple talaq's redundancy in Islam.

"We have to see the test of essentiality and the government has to prove that 'triple talaq' is not an essential part of Islam as this will amount to tinkering with religion", the bench said.

To this, Rohatgi 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.

The bench however insisted that the government has to first prove that this practice of triple talaq was not essential to Islam and only then can it delve further into other aspects.

"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, adding that all personal laws have to be in confirmatory with the Constitution.

The bench will continue hearing the case on Tuesday when All India Muslim Personal Law Board, through its lawyer Kapil Sibal, will argue against judicial intervention in the matter.

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