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Will bring new law, if triple talaq struck down: Centre to SC

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.

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