The Supreme Court asked All-India Muslim Personal Law Board (AIMPLB) on Wednesday whether it could ask qazis to ascertain from every woman prior to preparing the nikahnama whether she would give consent to her husband having the right to instant divorce through triple talaq.The court took note of the Muslim law board’s written submission on Tuesday that women had the right to insist on non-use of triple talaq in the nikahnama. A bench of Chief Justice J S Khehar and Justices Kur ian Joseph, R F Nariman, U U Lalit and Abdul Nazeer asked U Lalit and Abdul Nazeer asked its counsel Kapil Sibal: “Can AIMPLB tell qazis to advise every woman to put her considered and uninfluenced decision on use of triple talaq by her would-be husband? Can AIMPLB pass a resolution to this effect and ask qazis to incorporate it in the nikahnama?“ Sibal said he would get back with AIMPLB’s response.

Sibal continued his arguments in the same vein -triple talaq is a personal law custom which has been in use for the last 1,400 years and it was beyond the purview of courts to test its constitutional validity. Referring to a survey that took 300 divorces into account from a community as large as160 million, Sibal tried his best to dissuade the court from determining the validity of triple talaq, saying it was rarely employed to end marital relations.

“Triple talaq is practised by a minuscule number in Muslim community . The issue we are discussing is a dying practice. But if a secular Supreme Court takes it up suo motu and the government stands up to say all personal law practices needed to be adjudicated by the court, then the community, despite gradually giving up such practices, would take a rigid stand to protect its customs and beliefs. It is not a question of right or wrong,“ he said.

Sibal said: “The Muslim com munity’s faith of 67 years in the court is fundamental. With that faith we have come to this court.We see a golden eagle flying high in the sky . She sees small nests. It is the comfort of these nests that is essential to the survival of small birds. Minorities lie within the comfort of these nests. Let them not be threatened by the golden eagle,“ Sibal said, indirectly pitching it as a majoritarian government’s attempts to intrude into personal law practices.

Attorney general Mukul Rohatgi put forth a strong rejoinder refuting AIMPLB’s religion-driven arguments to stress on the touchstone of constitutional morality -gender justice and equality for Muslim women. Rohatgi said: “The issue should not be seen from the prism of majority vs minority . It is not so. It is an intra-minority issue in which there is a tussle between women and men for right to equality and gender justice in marriage…“

During the arguments, the SC complained that the counsel were selectively quoting Quran and Hadith. “We want to tell the counsel we do understand what is going on before us. You may say it is part of faith. But to say triple talaq, a small part of the many methods of divorce, is essential part of religion would be taking it too far. The Quran provides for talaq but not triple talaq and scholars have agreed that it is sinful. A sinful practice cannot be an essential part of religion.“

The arguments are likely to conclude on Thursday .

New Delhi: